JUVENILE JUSTICE ACT:
“Juvenile” emanates from the Latin word “Juvenis” which means “Young” and the “Juvenile Justice System” is the system to ensure justice to a child.
India, till about end of 2015 could boast of one of the most progressive acts for the Juveniles which believed in reform of the young and re-integration into the society. The act which came into force from last week of January 2016, named as Juvenile Justice will probably not do justice to the young anymore. The new legislation is based on the flawed assumption that sending children to the adult criminal justice system would solve the problem of juvenile crime as well as women safety. Unfortunately, this assumption has been derived primarily because of the systemic failure of the implementation of the Juvenile Justice Act (2000) in spirit. Now it has to be seen whether the current system and infrastructure would be able to do justice to the enforcement of the new legislation.
The new Juvenile Justice Act is envisaged to adopt a ‘two stage process’ to ensure justice to the children who fall within the ambit of this legislation. The Juvenile Justice Boards have been given the additional responsibility to ascertain whether the juvenile in conflict with the law will be tried under the juvenile system or the adult system. This process is highly significant and will act as the first step to ensure that no innocent child is sent to the adult criminal justice system.
We need to ask a fundamental question here. Are the Juvenile Justice Boards, in their current state equipped to take up responsibility and reach a judicious decision which would impact the rest of the life of the children involved? This process itself is marred with serious gaps.
Under the Juvenile Justice Act (2000) every district is mandated to have at least one Juvenile Justice Board (JJB). After the (2000) Act came into force; there were serious concerns about not just the implementation but the mere existence of statutory bodies like the Child Welfare Committees and the JJB across all districts.
Further, the JJBs have been struggling with pending cases and the duration of trial has also exceeded the mandated period. The 2014 data which provided 12,619 trials (“inquiries” as per JJ Act) conducted by the Boards show that the trial or inquiry was completed only in a mere 16.5% of the cases in six months. In around 30% of the cases, the duration of the trial exceeded even the mandated period of detention of 3 years.
These alarming numbers of pending cases are a matter of concern in almost all states. Lesser number of sittings held by the board also adds on to the pendency of the cases.
According to NCPCR report on the National Conference by Juvenile Justice Board last year in May, about 44% of the JJB members interviewed said that less than three sittings per week were held.
The new bill allows young children to be tried as adults in more than 46 offences under the Indian Penal Code and other acts. Given this, the number of cases will increase manifold, thus increasing the already existing burden on the JJBs. Children have to bear the agony of this delay. Ideally, there should not be more than 100 inquiries pending before each JJB so that they can be disposed of in the required period of four months. Given the circumstances, the JJBs have a difficult if not impossible task to handle.
The Selection of the members of the JJ Board is yet another area which should be vehemently discussed. In the Juvenile Justice Act 2000, the constitution of the selected committee has been referred in the JJ Rules. In the duration of the implementation of the law, there have been various delays and concerns in the selection procedure. We expect the new law to spell out a formal procedure for the selection of statutory authorities with a clear reference which unfortunately is not the case.
CRY, working for over three decades on ground across the country, has experienced the impact of the same.
In our intervention area in Uttar Pradesh, for instance, the tenure of the members of the committee has been over for a year and a half and the new committee has not been constituted. This has inevitably led to non- appointment of JJB members, in which the tenure of the old members has been extended. The vacant positions in JJBs across the country aren’t surprising. The fact that there are many vacancies in the required clerical staff as well adds to the woes.
Research has proven that assessment of individual maturity and mental capacity is extremely difficult. The suggested assessment process may be arbitrary or may be influenced by biases & is likely to be erroneous. While this assessment cannot be objectively carried out, the law refers to a provision that the Board may take assistance of a professional to take this decision. It is common knowledge that there is a dearth of professional counsellors/ psychologists who can be consulted by JJB in every district. This is an area of concern which will have substantial impact on the decision of the JJB.
The decision of the JJBs to send a juvenile to the adult system, to say the least, is life changing for the child. A not so informed decision would surely be disastrous.
Are we willing to take that chance with our children?
With the new Act, we have taken away the chance to reform for a majority of children in conflict with the law. With no systems in place, we are also taking away their right to justice. The proper implementation of the amendment in the current state of machinery seems highly unlikely. It is not unless the government takes cognizance of these gaps, can our children have even a shot at justice or a fair trial to begin with.
Children above 15 years of age are treated as adults and not juveniles in case of heinous crimes like rapes and murders and are a direct violation of the provisions of right to equality under Article 14 and special protection for children under Article 15(3) of Constitution of India.
Adolescence age is a period where children are not fully capable of thinking through their actions. Children, even till the age of completion of adolescence, are highly susceptible to negative influence, lack of foresight and inability to estimate risks which lead them to make poor decisions. This is the reason they are considered to be less culpable than adults and the legislations factor in this is an important differentiation. The process of physical, mental and cognitive development reaches its full potential around the upper limit. The ability to judge the concepts of long-term or future repercussions of their actions and the ability to comprehend the various dimensions of risk-taking activity improve coordination between social, emotional and cognitive development. Also to use as a deterrent move to cut down the involvement of juvenile in heinous crimes is an unsupported claim. According to National Crime Records Bureau, in 2013, the number of reported incidents of IPC offences by adults was reported at 3,523,577 whereas those by juveniles were reported at 38,765. Thus, the proportion of juvenile to adult crime is just 1.09%.
EARLY CHILDHOOD CARE AND DEVELOPMENT
Early Childhood Development is a continuous care from pregnancy to early childhood (birth-6 years).
Satistics of Malnutrition:
- There are around 158.7 million children under the age of six years.
- Around 78.7 million children, which is around 48%, are covered under ICDS.
- The proportion of underweight children under 5 years is still as high as 30%. Also around 38% of children are stunted out of which 17.4% are severely stunted.(RSOC 2013-14).
- Poor nutrition of the woman during adolescence and then at later stage of pregnancy, lack of social security, absence of maternity benefits leads to under nutrition in women and subsequently to children in the early days.
- Learning begins at birth and it seamlessly continues through all age groups. By 5 years 90% of the brain development takes place.
- First five years (especially the period of birth to 3 years) is where the brain growth takes place. Lack of proper nutrition, safe drinking water facilities and sanitation, repeated infections are few aspects which if not addressed have a potential to cause irreversible damage to child’s development.
Addressing Issues of Malnutrition:
Early childhood, spanning from birth to the age of six years, is the crucial period when the foundations of cognitive, physical and socio-emotional development, language and personality are laid. It is also the phase of maximum vulnerability as deprivation can seriously impact a child’s health and learning potential. Therefore, we need to ensure that children in this age group get the best of nutrition, health and learning. CRY strongly recommends that health, nutrition and care to children should be provided as entitlements. Nutrition security of these children should be addressed with utmost urgency.
Malnutrition is a complex child rights issue which requires intervention both at policy level as well as micro level individual growth monitoring plan. India has not been very successful in achieving its set targets under the Millennium Development Goal (MDG) 2015 in decreasing the level of under nutrition in the country. In 1990, the proportion of underweight children below the age of 3 was 52% which was required to be addressed and brought down to 26%. However, between the last two rounds of National Family Health Survey (NHFHS 2 & 3) the proportion of underweight children below the age of five years was reduced from 43% to 40%. The recent report (Global Nutrition Study) states that it has further reduced to 39%. Though the rate of declination is rapid, India needs to put this as a priority and strategically address the issue of under nutrition. There needs to be a systemic change in the way our government reacts to this national emergency of malnutrition, especially in the marginalised communities. Proper implementation of schemes, rigorous follow ups and fresh surveys are absolutely imperative in looking at solutions.
EARLY CHILDHOOD EDUCATION (ECE):
Learning begins from birth and it seamlessly continues through all age groups. It has been scientifically established that early infant stimulation is the first step in the education tree. Early stimulation can be successfully addressed through home based stimulation techniques where trained front line workers can be enabled and they can train parents and guardians for early infant stimulation.
“Ensure that all girls and boys have access to quality early childhood development, care and pre-primary education so that they are ready for primary education”. It is very important to work on the provision of trained workforce in crèches and day care centres and address the issues in the non-formal work setting.
Law Commission Report No. 259 (2015) recommends amendment of Article 21A of the constitution and sec 24A of RTE. The age group of 3 to 6 years should also enjoy the same constitutional rights as the children between the age of 6 to 14 years.
We should carefully look at options of phase wise expansion of the anganwadi-cum-creches model and the ECE programme should ensure that there is adequate availability of qualified trained functionaries, appropriate provision of infrastructure and ensuring that the ECCE curriculum is followed and there is proper monitoring mechanism in place.
There needs to be investment carried out in ensuring that the benefit of the welfare scheme reaches every child and there is proper institutionalisation of convergence of schemes.
Recommendations by CRY:
- To expand anganwadi-cum-creches model phase wise.
- ECE programme should ensure that there is adequate availability of trained functionaries.
- Appropriate provision of infrastructure facilities.
- To ensure that ECE curriculum is followed and there is proper monitoring taking place.
- Proper implementation of National Food Security Act 2013 and framing of model rules for NFSA with respect to ICDS and maternity benefits.
- The state should ensure modelling for having a 2nd worker for ICDS implementation.
- To ensure that the benefit of the welfare scheme reaches every child and there is proper institutionalisation of convergence of schemes i.e. health, nutrition and learning.
- Centre should develop guidelines on allocation of devolved budgets for ICDS to different states in the country with the change in centre state budget sharing equations.
NEW EDUCATION POLICY (NEP):
After a good 30 years, India’s education policy is yet again up for revision. Given that India is home to 400 million children, the New Education Policy (NEP) has tremendous potential to directly affect a large percentage of India’s population. Hence, it is extremely important that decision makers across all levels, work together to ensure that a robust structure and mechanism is created for our children to learn, develop and flourish.
A well-crafted policy which addresses various existing challenges will be a positive step in ensuring that all children enjoy their right to education. Duty bearers for children should make a promise that the childhood of our country’s children shouldn’t be spent begging on streets or working in agricultural fields or construction sites, but in well-equipped classrooms.
According to the District Information System for Education (DISE) 2014-15 data, although 197.66 million children were enrolled in schools, 7.4 million children did not see the doors of any school. So even today, students at the lower strata of society are struggling to attend schools on a daily basis. The NEP therefore has to carve a pathway to ensure that children who are vulnerable and marginalised get an education that they deserve.
The policy needs to create a comparable, equitable and quality education system so that the educational experiences of the child aren’t merely dependent upon their socio-economical profile, or geographical presence.
Recommendations by CRY:
Universal access to free, equitable quality of education for children in the age group of 0-18 yrs:
NEP should recognize Change Brought after RTE Act 2009 in terms of increase in reach and improvement in school infrastructure and carve a future vision and pathway for the implementation of Right to Education Act in India.
It should consider the aspects of upward (including 3to 6 years) and downward (14-18 years) extension of RTE Act. The policy should also have specifics on how to address issue of quality teaching and learning outcomes.
NEP should also integrate principles of equity and inclusiveness and the vision to achieve the same.
Present Educational Indicators reflect clear gaps – in access, enrolment, retention, attendance with respect to specific population/ areas that should be addressed.Not just teachers, school staff, and communities, but even children need to be sensitized and trained to be inclusive.
Public Investment in Education:
- Current Budgetary allocation has not been sufficient to achieve the educational goals that have been set. The new education policy should clearly define the targets on budgetary allocation and how India will increase its public investment in Education.
- The Budgetary Allocation increased from 2010 to 2014 indicating investment for implementation of RTE but is subsequently decreasing.
- There is change in the devolution pattern of states as part of the cooperative federalism and therefore increased expectations from states to invest in education.(especially RMSA and ICDS).
Ensuring Ownership, Transparency and Accountability of all stakeholders:
Education department has multiple layers and departments. Accountability at all levels is essential. State, parents, teachers and community should take ownership of making children’s education as a priority and building strong community based monitoring mechanism as well as robust monitoring and review mechanisms within government departments.
Establishing strong protection mechanism:
- Personnel ( including Code of Conduct)
- Positive Disciplining
- Children’s education for personal safety
- Reporting and Redressed protocols
- Child protection policies at school level
NEP to recognize that learning beings at birth should seamlessly continue across age groups:
- Stimulation of infants must be the first step in the educational ladder.
- Infant Stimulation is to be addressed through :
- Home-based stimulation programmes where trained front line workers train parents for infant stimulation.
- Trained workforce should be provided in crèches and day care centres
- Phased expansion of the model of anganwadi-cum-crèches should be piloted.
The core components of a good ECE programme includes the following:
- Availability of qualified and trained ECE functionary or teacher to provide ECE.
- Appropriate infrastructure and curriculum.
- Frequent monitoring and supervision mechanism.
- Appropriate regulatory and monitoring rules for anganwadi, balwadis and private pre-school
- Institutionalize convergence of schemes.
Addressing issue of Child Labour:
Special attention is to be given to children between the age of 5 to 9 years where the number of children working have increased in last ten years (Census 2001 and 2011).
Children who combine work and education have lower attendance and they are more likely to drop out as well as low outcomes of income. Social security should be ensured for most marginalized families like SC, ST and Primitive Tribes.
School Standards and School Management Systems:
- Strengthen Community Audits/ Community ownership and Management of Education.
- Empower SMC and Increased involvement of parents from disadvantaged sections.
- Make community monitoring and functioning of SMCs integral to the RTE monitoring framework (qualitative and quantitative aspects).
- Public recognition of well functioning SMCs/ Reward system instituted to promote ownership and collective effort of village people towards school.
- Regular interactions with children should be organized for ensuring children’s’ participation.
Enabling Inclusive Education:
- Inclusion in education means two things-
- To reduce exclusion from and within education.
- To approach towards the diversity of learning needs of students.
- All Indicators of Education show that children from disadvantaged groups, girls, and CWSN have higher drop out rates, lower transition rates as well as lower learning achievements, and are more prone to child labour, trafficking, and child marriage.
- Total enrolment of ST dropped from 11.09% in primary school level and 8.58% in the secondary school level.
- Total enrolment of Muslims in schools also dropped from 14.34% in primary education and 9.87% in secondary education.
- Out of the total enrolment in primary education only 1.30% consists of Children with special needs (CWSN). This falls steeply to 0.61% for secondary education, which suggests that there is a large numbers of CWSN drop out of schooling mid-way (U-DISE 2013-14).
- Even in 2014-15 8% of schools continue to be single teacher schools and an equal number or more are two teacher schools.
- Closure and merger of schools can be a phenomenon that may have an impact on the marginalization.
- NEP should make inclusion an integral part of its approach and vision strategies for different sections of populations that have remained excluded fully or partially.
- To enable teacher’s community to ensure Inclusion, Non discrimination and Equity.
- Recruitment, Training, monitoring, appraisals should reinforce equity.
- Focus trainings on attitudes, broaden understanding and methodologies.
- To recruit teachers from the same community, minority, or gender as an effective strategy.
- To help children learn and adopt inclusion.
- There should be strong monitoring and redress mechanism to deal with discrimination and other issues of exclusion.
- Ensure availability of customized learning material( local language).
- NEP should envisage measures to deal with issue of migration.
- Residential Education should be a part of inclusion.
- To identify disabilities and developmental delays as early as possible.
- Trained teachers should be provided.
- To make appropriate contents available (braille, audio books, etc).
- To avail proper infrastructure to facilitate access and retention (ramps, toilets, etc).
- To enable Curricular Adaptation and Adaptation of Vocations.
UNIVERSALISATION OF SECONDARY EDUCATION
India should be cognizant of the 12th five year plan targets on Secondary Education as well as the recently defined Sustainable Development Goals and Targets on Secondary Education which states by 2030 “ensure that all girls and boys complete free, equitable and quality primary and secondary education leading to relevant and effective learning outcomes”.
There is an urgent need to carry out adequate public spending in secondary and higher secondary education. It is imperative that we improve the accessibility and availability of secondary schools in order to improve the transition rates and retention rates. Challenges of far fledged areas, difficult terrain needs a special strategisation and concerted efforts in implementation.
Special strategies should be defined for strengthening secondary and higher secondary education for girls. Aspects of incentivisation for girl children, health and protection needs and rights needs to be clearly defined. The approach of residential schools, especially in tribal areas has displayed clear positivities. However to strengthen this further there is a need to carry out proper review and establish proper protocols to ensure girls are well protected and that there is proper coordination between Ministry of Human Resource Development and Ministry of Health and Family Welfare, Ministry of Tribal Affairs etc.
CHILD LABOUR AND CHILD LABOUR PREVENTION AND REHABILITATION ACT (CLPRA):
There are 10.13 million children working in India between the age of 5 and 14 years as per Census 2011. Given the fact that the expression of article 21A (free and compulsory education for children between age of 6 -14years) is indicative of acceptance toward economic role of children in itself raises questions. There has been ample evidence from academic and research sources which show that children who do both are likely to drop out from education early and take up economic roles.
Providing scope for children to have economic roles might have multiple other impacts such as occupational hazards or lack of equal opportunity. One of the trends that is worth concerning is that the number of children working in the age group between 5 to 9 years has significantly increased in last ten years as reflected in the census 2011.
The proposed amendment in CLPRA does not have any reference to children who are trafficked for labour. A cross-reference to the exiting Indian Penal Code (IPC) section 370 would have strengthened the law and given clarity on the role of labour inspectors and the police. Also, the proposed definition of hazardous work in the amendment has been considerably narrowed and leaves out a large number of occupations and processes that were earlier present in the list of hazardous occupations as per the 1986 Act. This is likely to affect a lot of children who would end up taking adult economic roles early in their lives.
There is a need to review the meaning of ‘hazardous processes’ and widen the processes that are likely to affect health, safety and morals of adolescents. The proposed definition of hazardous processes aligns it with the existing list under the Factories Act, 1948. Aligning the CLPRA Bill with labour legislation rather than social legislation will dilute the spirit of the Act and adversely impact children. It is important for the state to note that Factories Act and other labour legislations are regulatory Acts where as CLPRA is protection oriented with larger social implications.
Read More on how CRY is working on the following issues: